INTERNATIONAL COLLECTIVE INVESTMENT SCHEMES LAW

Transcription

1 REPUBLIC OF CYPRUS INTERNATIONAL COLLECTIVE INVESTMENT SCHEMES LAW (No 47(I) of 1999) English translation prepared by The Central Bank of Cyprus

2 ARRANGEMENT OF SECTIONS PART I PRELIMINARY AND GENERAL Section 1. Short title 2. Interpretation 3. Regulatory and supervisory authority PART II INTERNATIONAL FIXED CAPITAL COMPANIES 4. Recognition of international fixed capital companies 5. Share capital of international fixed capital companies 6. International fixed capital companies of limited duration 7. Managers of international fixed capital companies 8. Trustees of international fixed capital companies 9. Changes in directors of international fixed capital companies INTERNATIONAL VARIABLE CAPITAL COMPANIES 10. Recognition of international variable capital companies 11. Contents of constitutional documentation of international variable capital companies 12. Power of international variable capital companies to repurchase own shares 13. Treatment of repurchased shares 14. International variable capital companies of limited duration 15. Managers of international variable capital companies 16. Trustees of international variable capital companies 17. Changes in directors of international variable capital companies 2

3 INTERNATIONAL UNIT TRUST SCHEMES 18. Recognition of international unit trust schemes 19. Assets of an international unit trust scheme 20. Managers of international unit trust schemes INTERNATIONAL INVESTMENT LIMITED PARTNERSHIPS 21. Recognition of international investment limited partnerships 22. Trustees of international investment limited partnerships 23. Limited liability of partners 24. Admission of limited partners and assignment of interest 25. Return of capital contribution 26. Cessation of limited partner on assignment 27. Legal proceedings 28. International investment limited partnership not dissolved by change in limited partners 29. Notice of dissolution 30. Matters or differences as to business of an investment limited partnership and contracts with partners PART III INTERNATIONAL COLLECTIVE INVESTMENT SCHEMES MARKETED TO THE GENERAL PUBLIC 31. Investment restrictions of schemes marketed to the general public INTERNATIONAL COLLECTIVE INVESTMENT SCHEMES MARKETED SOLELY TO EXPERIENCED INVESTORS 32. Investment restrictions of schemes marketed solely to experienced investors 33. Minimum initial subscription in schemes marketed solely to experienced investors 3

4 34. Prohibition of issue of bearer shares 35. Relief of requirement to make public the sale and redemption prices PRIVATE INTERNATIONAL COLLECTIVE INVESTMENT SCHEMES 36. Investment restrictions of private international collective investment schemes 37. Definition of private international collective investment schemes 38. Relief of requirement for private international collective investment schemes to appoint managers or trustees PART IV MANAGERS 39. Requirements for managers of schemes 40. Obligations of managers of schemes 41. Liability of managers of schemes 42. Change of ownership of managers of schemes 43. Directors of managers of schemes 44. Place of business of managers of schemes TRUSTEES 45. Eligibility of trustees of schemes 46. Requirements for trustees of schemes 47. Obligations of trustees of schemes 48. Liability of trustees of schemes 49. Change of ownership of trustees of schemes 50. Directors of trustees of schemes 51. Place of business of trustees of schemes 4

5 PART V INSPECTION, INVESTIGATION, REGULATION 52. Maintenance of records and powers of authorised persons 53. Appointment and powers of inspectors 54. Obligation of schemes, managers and trustees to furnish information 55. Changes in the constitutional documentation, in the offering memorandum and the name of a scheme 56. Requirement by the Bank for taking measures 57. Revocation of recognition of a scheme 58. Replacement of manager and trustee of a scheme 59. Notification by the Bank of intention to require the taking of measures or revocation of recognition or replacement of the manager or trustee 60. Power of Court in case of failure to comply with the Law or administrative act issued under the Law 61. Liability of officers of the scheme, the manager or trustee where there is a contravention of the Law or administrative act issued under the Law PART VI GENERAL PROVISIONS 62. Publication of offering memorandum 63. Calculation of Net Asset Value 64. Requirement of appointment of Auditor by the scheme 65. Publication of annual and half yearly reports 66. Payment in cash or non-cash contribution for the purchase of units 67. Regulations: Investment restrictions, directions and codes of conduct for schemes, managers and trustees 68. Names of schemes 69. Register of schemes 70. Certificate of recognition 71. Sale of units 72. Redemption or repurchase of units 5

6 73. Value of assets of the scheme 74. Suspension of repurchase or redemption of units 75. Dealings with schemes 76. Exemption from the obligation to pay tax 77. Liability of Bank 78. Parallel applicability of the Companies Law and the Partnership and Business Names Law PART VII SECRECY 79. Duty to maintain secrecy PART VIII OFFENCES AND PENALTIES 80. Offences and penalties 6

7 PART I PRELIMINARY AND GENERAL Short title. 1. This Law may be cited as the International Collective Investment Schemes Law, Interpretation. 2. In this Law, unless the context otherwise requires - associated undertaking means, as appropriate - (i) a holding company or a subsidiary company of a scheme, of its manager or of its trustee; (ii) a subsidiary of a company of which a scheme, its manager or its trustee is also a subsidiary; (iii) any other company that is not a subsidiary of a scheme, its manager or its trustee but in respect of which a scheme, its manager or its trustee is beneficially entitled to more than twenty per cent in nominal value of either the issued share capital or of the shares carrying voting rights in that company; (iv) a partnership or trust in which a scheme, its manager or its trustee has an interest in excess of twenty per cent; (v) a company or partnership or trust which has an interest in excess of twenty per cent in a scheme, its manager or its trustee. auditor means a person qualified to be appointed as auditor of a company, other than a private company, in accordance with section 155 of the Companies Law and approved by the Bank under the Law; 7

8 Bank means the Central Bank of Cyprus; beneficial owner means the true owner of units who may be a different person from the nominee owner; company means a company within the meaning of the Companies Law or the equivalent law of any other jurisdiction, as appropriate; constitutional documentation means in the case of an international investment company the memorandum and articles of association, in the case of an international unit trust scheme the trust deed and in the case of an international investment limited partnership the partnership agreement. The constitutional documentation may be in the English language; Court means the District Court in the district where the scheme has its registered office; director includes any person occupying the position of director by whatever name this position is called and any person who effectively directs or exercises a material influence over the business of a company and includes a person in accordance with whose directions or instructions the officers of a company are accustomed to act unless the officers act on advice given by him in a professional capacity; distribution means a payment made to a unitholder by an international collective investment scheme other than a payment made in respect of redemption or repurchase of a unit; experienced investor means a unitholder who meets the criteria prescribed from time to time by the Bank in accordance with regulations issued under Section 67 of the Law; 8

9 fit and proper person means a person who meets the criteria prescribed from time to time by the Bank in accordance with regulations issued under Section 67 of the Law; general partner means a partner who is not a limited partner as defined in the Law; holding company has the meaning given to it by section 148 of the Companies Law or the equivalent law of any other jurisdiction, as appropriate; international collective investment scheme which for the purposes of the Law it shall be hereinafter be referred to as scheme, means an international fixed capital company, an international variable capital company, an international unit trust scheme and an international investment limited partnership, the sole object of which is the collective investment of funds of unitholders and the units of which, unless provided otherwise by the Law or any other law applicable thereto or its constitutional documentation, are at the option of unitholders redeemed or repurchased directly out of the assets of the scheme; international fixed capital company means a company incorporated under the Companies Law which is recognised to operate as an international fixed capital company under Part II of the Law; Cap of of of of of of (1) of (1) of (1) of (1) of international investment company means an international fixed capital company or an international variable capital company; 9

10 international investment limited partnership means a limited partnership registered under the Partnership and Business Names Law which is recognised to operate as an international investment limited partnership under Part II of the Law; Cap of international unit trust scheme means an international trust created under the International Trusts Law which is recognised to operate as an international unit trust scheme under Part II of the Law; 69(I) of international variable capital company means a company incorporated under the Companies Law which is recognised to operate as an international variable capital company under Part II of the Law; investment restrictions means investment restrictions of general or limited applicability which are issued by the Bank from time to time in accordance with regulations issued under section 67 of the Law; limited partner means a person who has been admitted to an international investment limited partnership as a limited partner in accordance with the partnership agreement and who shall, at the time of entering into such partnership, contribute or undertake to contribute a stated amount to the capital of the partnership and, except as provided by the Law, shall not be liable for the debts or obligations of the international investment limited partnership beyond the amount so contributed or the amount undertaken to be contributed; Law means the International Collective Investment Schemes Law, 1999; manager means a person entrusted with the management of the assets and generally of the activities of the scheme and includes in the case of an international investment limited partnership, the general partner(s); 10

11 net asset value of a scheme is the aggregate of its assets less the aggregate of its liabilities; offering memorandum means any prospectus, notice, circular, advertisement or other invitation to the public for the purchase of units in a scheme; officer means a director, executive director, secretary or a person who acts under the immediate control of a director or an executive director by whatever name called; 11

12 Offshore Enterprise means a company or partnership falling within section 8 paragraph (y) and a company falling within section 28A of the Income Tax Law; 58 of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of of (I) of (I) of (I) of (I) of (I) of (I) of (I) of (I) of (I) of (I) of

13 partnership means a general or limited partnership, established under the Partnership and Business Names Law or the equivalent law of any other jurisdiction as appropriate; partnership agreement means any written agreement of the partners as to the affairs of an international investment limited partnership and the conduct of its business as may be amended, supplemented or restated from time to time; "person" means an individual, a company, a partnership, an association, a society, an institution or a body of persons corporate or unincorporate and includes a trust or an international unit trust scheme; prescribed fee means any fee or charges prescribed by the Bank from time to time in accordance with regulations issued under section 67 of the Law; "private international collective investment scheme" means an international collective investment scheme which complies with the provisions of sections 36 to 38 of Part III of the Law; property or ownership means immovable or movable property of whatever kind (including choses in action) in all cases located outside the Republic with the exception - (a) deposits with banks licensed under the Banking Law (No 66(I) of 1997), (b) units in a scheme and shares and interests in offshore enterprises, (c) shares listed on the Cyprus Stock Exchange; 66(I) of recognition means the recognition granted under sections 4, 10, 18 and 21 of the Law; 13

14 registered office in the case of a company has the meaning ascribed to it by section 102 or in the case of overseas companies the address given under section 347(c) of the Companies Law and in the case of an international unit trust scheme means the registered office of the trustee and in the case of a partnership means the place where the business of the partnership is carried on as declared in its application for registration under the Partnership and Business Names Law; Registrar means in the case of companies the Official Receiver and Registrar under the Companies Law and in the case of partnerships the Registrar of Partnerships under the Partnership and Business Names Law; Republic means the Republic of Cyprus; share means share in the share capital of a company of whatever form; Stock Exchange for the purposes of the Law is an exchange recognised by the Bank, after taking into account the opinion of the Minister of Finance; subsidiary company has the meaning given to it in section 148 of the Companies Law or the equivalent law of any other jurisdiction as appropriate; tax means any municipal taxes, inheritance tax, sales tax, value added tax, stamp duty or any other taxes save for any taxes under the Income Tax Law or the Capital Gains Tax Law; 52 of of (I) of (I) of "trust agreement" means a written agreement other than a trust deed by which a trustee of a scheme is appointed; 14

15 trust deed means the instrument creating an international unit trust scheme as may be amended, supplemented or varied from time to time; trustee means the trustee of a scheme, in whom the property of the scheme has been vested in accordance with the terms of a trust deed or trust agreement; unit means a share, participation or interest in a scheme and includes any other interest or right - (a) in the assets, profits or gains of a scheme or (b) to receive a distribution from a scheme; unitholder means the owner of units of a scheme and who may be a scheme or an offshore enterprise or a person not being a permanent resident of Cyprus for the purposes of the Exchange Control Law. Cap of Regulatory and supervisory authority. 3.-(1) The Bank shall be the regulatory and supervisory authority for schemes, their managers and trustees. (2) The Bank shall consult and exchange information with regulatory or supervisory authorities of other countries at the stage of application for recognition and on an ongoing basis for the purposes of establishing the suitability of schemes, the managers, trustees or associated undertakings of any of the aforementioned, of the promoters of schemes or of the investments of schemes. (3) Save as provided for in subsection (2) of this section, the Bank may not pass on any information acquired by or supplied to it under subsection (2) unless compelled to do so by order of a competent court, issued by virtue of the provisions of any other law. 15

16 PART II INTERNATIONAL FIXED CAPITAL COMPANIES Recognition of international fixed capital companies. 4.-(1) Upon written application to the Bank by or on behalf of a company incorporated in the Republic, the Bank may recognise such company as an international fixed capital company if it is satisfied that - (a) The competence of the directors and promoters of the applicant company in respect of matters concerning international fixed capital companies and their probity is such as to render them suitable to act as directors and promoters of the applicant company; (b) the manager meets the requirements under section 39; (c) the trustee meets the requirements under section 46; (d) the manager and the trustee act independently of one another; (e) the constitutional documentation of the company contains the information prescribed from time to time by the Bank in a form acceptable to the Bank; (f) the offering memorandum of the company contains the information prescribed by the Bank from time to time in a form acceptable to the Bank; (g) the company submits to the Bank other documentation and information as prescribed by the Bank from time to time in a form acceptable to the Bank together with the prescribed fee; and 16

17 (h) the name of the international fixed capital company is not, in the Bank s opinion undesirable. (2) The Bank may impose in any recognition such conditions and give such directions as it deems appropriate including, conditions as to the activities which the international fixed capital company must carry on from within the Republic and may at any time amend or vary all or any of such conditions and directions given as it deems appropriate. (3) The international fixed capital company, its manager and trustee shall comply with any conditions imposed or directions given by the Bank under subsection (2). (4) The Bank in applying this section designates the international fixed capital company as - (a) A scheme to be marketed to the general public; or (b) a scheme to be marketed solely to experienced investors; or (c) a private international collective investment scheme. (5) The recognition of an international fixed capital company by the Bank shall not constitute a warranty by the Bank as to the performance of the scheme and the Bank shall not be liable for the said performance or any omissions or malpractise by the scheme its manager or trustee. Share capital of international fixed capital companies. 5. An international fixed capital company shall have such minimum issued and fully paid up share capital as may be prescribed by the Bank and may be denominated in any currency approved by the Bank. 17

18 International fixed capital companies of limited duration. 6.-(1) An international fixed capital company may, on satisfying the Bank that the interests of existing and prospective unitholders and of creditors are protected, be authorised to provide in its constitutional documentation that, at the end of a fixed duration or upon the occurrence of a specified event, the company will be wound-up. (2) The following provisions of the Companies Law shall, in relation to a company to which this section applies, be read as if - (a) In section 261 (1) (a) the words and the company in general meeting has passed a resolution requiring the company to be wound-up voluntarily were deleted; (b) subsection (1) of section 262 was replaced with the following new subsection - When a company is being wound-up under the provisions of section 261(1) it shall within fourteen days of the expiration of the fixed duration or the occurrence of an event giving rise to the winding-up or the passing of a resolution that the company be wound-up, give notice of the expiration or the occurrence of the event or the passing of resolution by the company by advertisement in the official Gazette of the Republic ; (c) in section 263 the words or on the expiration of the fixed duration of the company or upon the occurrence of the event giving rise to the winding-up or the passing of a resolution by the company were inserted at the end of the section; and (d) the words within twenty-one days of a voluntary winding-up having deemed to commence in accordance with section 263, the company in a general meeting or as otherwise may be provided in its constitutional documentation shall appoint a liquidator were inserted as a new subsection (3) of section

19 Managers of international fixed capital companies. 7.-(1) Save as provided for in subsection (3) of this section, an international fixed capital company shall appoint a manager and the procedures to be followed in appointing a manager shall be set out in the company s constitutional documentation. (2) The manager of an international fixed capital company shall not be replaced without the prior approval of the Bank. (3) Notwithstanding subsection (1) the Bank may exempt an international fixed capital company from the requirement to appoint a manager if the directors of that company satisfy the Bank on a continuing basis that the company has sufficient management resources at its disposal to effectively conduct its business with due and proper regard being always had for the protection of the interests of unitholders, as if it had a manager. (4) In the event of the Bank exempting an international fixed capital company from the requirement to appoint a manager, all duties and obligations of the manager in the Law and any administrative act issued under the Law relating to Managers, shall apply to the directors of the international fixed capital company. Trustees of international fixed capital companies. 8.-(1) Save as provided for in subsection (3) of this section, an international fixed capital company shall appoint a trustee. (2) The trustee of an international fixed capital company shall not be replaced without the prior approval of the Bank. (3) Notwithstanding subsection (1) the Bank may exempt an international fixed capital company from the requirement to appoint a trustee if - 19

20 (a) The units of the company are or are expected to be listed on a Stock Exchange and the Bank considers that its units are or are expected to be actively traded on that Stock Exchange; (b) the Bank is satisfied that the interests of the unitholders in the company will not in any way be prejudiced by the absence of a trustee; and (c) the international fixed capital company assumes the obligation to ascertain the net asset value of its units and communicates it to the Bank and the unitholders at least every fifteen days and its auditor ensures at least once monthly that the net asset value of the units of the international fixed capital company is calculated in accordance with the Law or any administrative act issued under the Law and its constitutional documentation and that its assets are invested in accordance with the Law or any administrative act issued under the Law and its constitutional documentation. Changes in directors of international fixed capital companies. 9. No appointment shall be made to the office of the director of an international fixed capital company without the prior approval of the Bank and the creation or existence of a vacant position in the office of director of a company must be notified in writing to the Bank immediately upon that happening. INTERNATIONAL VARIABLE CAPITAL COMPANIES Recognition of international variable capital companies. 10.-(1) Upon written application to the Bank in accordance with this section by or on behalf of a company incorporated in the Republic the Bank may recognise the company as an international variable capital company if it is satisfied that - 20

21 (a) The competence of the directors and promoters of the applicant company in respect of matters concerning international variable capital companies and their probity is such as to render them suitable to act as directors and promoters of the applicant company; (b) that the manager meets the requirements under section 39; (c) the trustee meets the requirements under section 46; (d) the manager and the trustee act independently of one another; (e) the constitutional documentation of the company contains the information prescribed from time to time by the Bank in a form acceptable to the Bank; (f) the offering memorandum of the company contains the information prescribed by the Bank from time to time in a form acceptable to the Bank; (g) the company submits to the Bank other documentation and information as prescribed by the Bank from time to time in a form acceptable to the Bank together with the prescribed fee; and (h) the name of the international variable capital company is not in the opinion of the Bank undesirable. (2) The Bank may impose in any recognition such conditions and give such directions as it deems appropriate including, conditions as to the activities which the international variable capital company must carry on from within the Republic and may at any time amend or vary all or any of such conditions and directions given as it deems appropriate. 21

22 (3) The international variable capital company, its manager and trustee shall comply with any conditions imposed or directions given by the Bank under subsection (2). (4) The Bank shall, in applying this section designate the international variable capital company as - (a) A scheme to be marketed to the general public; or (b) a scheme to be marketed solely to experienced investors; or (c) a private international collective investment scheme. (5) The recognition of an international variable capital company by the Bank shall not constitute a warranty by the Bank as to the performance of the scheme and the Bank shall not be liable for the said performance or any omissions or malpractise by the scheme, its manager or trustee. Contents of constitutional documentation of international variable capital companies. 11.-(1) The constitutional documentation of an international variable capital company may, if it is so desired, in respect of the share capital of the company state in lieu of the matters set out in paragraph (a) of section 4 (4) of the Companies Law the following - (a) That the amount of the share capital of the company shall be equal to the net asset value of the shares of the company at any time in issuance; and (b) that the share capital may be divided into a specified number of shares without assigning any nominal value thereto (no par value). 22

23 (2) The constitutional documentation of an international variable capital company referred to in section 11(1)(a) and (b) shall include a provision that the value of the shares in issuance of the company, is at all times equal to its net asset value. 23

24 (3) In the Companies Law - Cap (a) A reference to a company limited by shares shall be construed as including an international variable capital company within the meaning of this section and reference to a share or to the share capital of a company limited by shares shall be construed accordingly; and (b) a reference to the nominal value of a share, or of the share capital issued by a company limited by shares shall be construed, in the case of an international variable capital company, referred to in section 11(1)(a) and (b) as a reference to the value of the consideration for which the share or share capital has been issued. Power of international variable capital companies to repurchase own shares. 12.-(1) The constitutional documentation of an international variable company shall include a provision that the shares of the company may or may not, at the request of any of the unitholders and subject to the provisions contained in its constitutional documentation, be repurchased by the company directly or indirectly out of the company s assets. (2) Notwithstanding anything contained in the Companies Law an international variable capital company shall not be obliged to create any reserve account in connection with the purchase of its own shares. Cap Treatment of repurchased shares. 13. Shares of an international variable capital company which have been repurchased by the company shall be cancelled and the amount of the company s issued share capital and reserves shall be reduced by the amount of the consideration paid by the company for the repurchase of the shares. 24

25 International variable capital companies of limited duration. 14.-(1) An international variable capital company may, on satisfying the Bank that the interests of existing and prospective unitholders and of creditors are protected, be authorised to provide in its constitutional documentation that, at the end of a fixed duration or upon the occurrence of a specified event, the company will be wound-up. (2) The following provisions of the Companies Law shall, in relation to a company to which this section applies, be read as if - Cap (a) In section 261(1)(a) the words and the company in general meeting has passed a resolution requiring the company to be wound-up voluntarily were deleted; (b) subsection (1) of section 262 was replaced with the following new subsection - When a company is being wound-up under the provisions of section 261(1) it shall within fourteen days of the expiration of the fixed duration or the occurrence of an event giving rise to the winding-up or the passing of a resolution that the company be wound-up, give notice of the expiration or the occurrence of the event or the passing of resolution by the company by advertisement in the official Gazette of the Republic ; (c) in section 263 the words or on the expiration of the fixed duration of the company or upon the occurrence of the event giving rise to the winding-up or the passing of a resolution by the company were inserted at the end of the section; and (d) the words within twenty-one days of a voluntary winding-up having deemed to commence in accordance with section 263, the company in a general meeting or as otherwise may be provided in its constitutional documentation shall appoint a liquidator were inserted as a new subsection (3) of section

26 Managers of international variable capital companies. 15.-(1) Save as provided for in subsection (3) of this section an international variable capital company shall appoint a manager and the procedures to be followed in appointing a manager shall be set out in its constitutional documentation. (2) The manager of an international variable capital company shall not be replaced without the prior approval of the Bank. (3) Notwithstanding subsection (1) the Bank may exempt an international variable capital company from the requirement to appoint a manager, if the directors of that company satisfy the Bank on a continuing basis that the company has sufficient management resources at its disposal to effectively conduct its business having regard to the protection of the interests of unitholders, as if it had a manager. (4) In the event of the Bank exempting an international variable capital company from the requirement to appoint a manager, all duties and obligations of the manager in the Law and any administrative act issued under the Law relating to managers, shall apply to the directors of the international variable capital company. Trustees of international variable capital companies. 16.-(1) Save as provided for in subsection (3) of this section an international variable capital company shall appoint a trustee. (2) The trustee of an international variable capital company shall not be replaced without the prior approval of the Bank. (3) Notwithstanding subsection (1) the Bank may exempt an international variable capital company from the requirement to appoint a trustee if - 26

27 (a) The units of the company are or are expected to be listed on a Stock Exchange and the Bank considers that its units are or are expected to be actively traded on that Stock Exchange; (b) the international variable capital company intervenes or undertakes to intervene on the Stock Exchange to prevent the Stock Exchange value of its units from deviating by more than five per cent from their net asset value; (c) the Bank is satisfied that the interests of the unitholders in the company will not in any way be prejudiced by the absence of a trustee; and (d) the international variable capital company assumes the obligation to ascertain the net asset value of its units and communicates it to the Bank and the unitholders at least every fifteen days and its auditor ensures at least once monthly that the net asset value of the units of the international variable capital company is calculated in accordance with the Law and any administrative act issued under the Law and its constitutional documentation and that its assets are invested in accordance with the Law and any administrative act issued under the Law and its constitutional documentation. Changes in directors of international variable capital companies. 17. No appointment shall be made to the office of the director of an international variable capital company without the prior approval of the Bank and the creation or existence of a vacant position in the office of director of a company must be notified in writing to the Bank immediately upon that happening. 27

28 INTERNATIONAL UNIT TRUST SCHEMES Recognition of international unit trust schemes. 18.-(1) Upon written application to the Bank in accordance with this section by the trustee of an international trust created under the International Trusts Law, the Bank may recognise it as an international unit trust scheme if it is satisfied that - 69(I) of (a) The manager meets the requirements under section 39; (b) the trustee meets the requirements under section 46; (c) the manager and the trustee act independently of one another; (d) the constitutional documentation of the scheme contains the information prescribed by the Bank from time to time and is in a form acceptable to the Bank; (e) the offering memorandum of the scheme contains the information prescribed by the Bank from time to time in a form acceptable to the Bank; (f) the trustee submits to the Bank other documentation and information prescribed by the Bank from time to time in a form acceptable to the Bank together with the prescribed fee; and (g) the name of the international unit trust scheme is not in the opinion of the Bank undesirable. (2) The Bank may impose in any recognition such conditions and give directions as it deems appropriate, including conditions as to the activities which an international unit trust scheme must carry on from within the Republic and may at any time amend or vary all or any of such conditions and directions given as it deems appropriate. 28

29 (3) The manager and trustee of an international unit trust scheme shall comply with any conditions imposed or directions given by the Bank under subsection (2). (4) The Bank shall, in applying this section, designate the international unit trust scheme as - (a) A scheme to be marketed to the general public; or (b) a scheme to be marketed solely to experienced investors; or (c) a private international collective investment scheme. (5) The recognition of an international unit trust scheme by the Bank shall not constitute a warranty by the Bank as to the performance of the scheme and the Bank shall not be liable for the said performance or any omissions or malpractise by the scheme, its manager or trustee. Assets of an international unit trust scheme. 19.-(1) The assets of an international unit trust scheme shall be vested in and entrusted to a trustee to be held in accordance with the trusts created under the trust deed and shall be dealt with by the manager in accordance with and subject to the trusts contained in the trust deed. (2) The proceeds of sale of any units of an international unit trust scheme and any income in respect of the assets of an international unit trust scheme that are not distributed to the unitholders shall be the assets of an international unit trust scheme and be subject to and dealt with by the manager in accordance with the trusts created under the trust deed. Managers of international unit trust schemes. 20.-(1) The trustee of an international unit trust scheme shall appoint a manager to that scheme and the procedures to be followed in appointing a manager shall be set out in the trust deed. 29

30 (2) The manager and the trustee of an international unit trust scheme shall not be replaced without the prior approval of the Bank. INTERNATIONAL INVESTMENT LIMITED PARTNERSHIPS Recognition of international investment limited partnerships. 21.-(1) Upon written application to the Bank in accordance with this section by or on behalf of a limited partnership registered in accordance with the Partnership and Business Names Law, the Bank may recognise it as an international investment limited partnership if it is satisfied that - (a) The general partner meets the requirements under section 39; (b) the trustee meets the requirements under section 46; (c) the general partner and the trustee act independently of one another; (d) the constitutional documentation of the international investment limited partnership contains the information prescribed by the Bank from time to time in a form acceptable to the Bank; (e) the offering memorandum of the international investment limited partnership contains the information prescribed by the Bank from time to time in a form acceptable to the Bank; (f) the general partner submits to the Bank other documentation and information prescribed by the Bank from time to time, in a form acceptable to the Bank together with the prescribed fee; and (g) the name of the international investment limited partnership is not undesirable. 30

31 (2) The Bank may impose in any recognition such conditions and give such directions as it deems appropriate including any conditions as to the activities which an international investment limited partnership must carry on in the Republic and may at any time amend or vary all or any of such conditions and directions given as it deems appropriate. (3) The general partner and the trustee of an international investment limited partnership shall comply with any conditions imposed or directions given by the Bank under subsection (2). (4) The Bank shall, in applying this section, designate the international investment limited partnership as - (a) A scheme to be marketed to the general public; or (b) a scheme to be marketed solely to experienced investors; or (c) a private international collective investment scheme. (5) The recognition of an international investment limited partnership by the Bank shall not constitute a warranty by the Bank as to the performance of the scheme and the Bank shall not be liable for the said performance or any omissions or malpractise by the scheme, its general partner or trustee. Trustees of international investment limited partnerships. 22.-(1) Save as provided for in subsection (3) of this section, an international investment limited partnership shall appoint a trustee. (2) The general partner and the trustee of an international investment limited partnership shall not be replaced without the prior approval of the Bank. 31

32 (3) Notwithstanding subsection (1) the Bank may exempt an international investment limited partnership from the requirement to appoint a trustee, if - (a) The units of the international investment limited partnership are or are expected to be listed on a Stock Exchange and the Bank considers that its units are or are expected to be actively traded on that Stock Exchange; (b) the international investment limited partnership intervenes on or undertakes to intervene on the Stock Exchange to prevent the Stock Exchange value of its units from deviating by more than five per cent from their net asset value; (c) the Bank is satisfied that the interests of limited partners in that international investment limited partnership will not in any way be prejudiced by the absence of a trustee; and (d) the international investment limited partnership assumes the obligation to ascertain the net asset value of its units and communicates it to the Bank and the unitholders at least every fifteen days and its auditor ensures at least once monthly that the net asset value of the units of the international investment limited partnership is calculated in accordance with the Law or any administrative act issued under the Law and its constitutional documentation and that its assets are invested in accordance with the Law or any administrative act issued under the Law and its constitutional documentation. 32

33 Limited liability of partners. 23.-(1) A limited partner shall not take part in the conduct of the business of the international investment limited partnership and in particular shall not have power to contract on behalf of the international investment limited partnership and all contracts, deeds, instruments, letters and documents whatsoever shall be entered into, drafted, signed, executed or prepared by the general partner on behalf of the international investment limited partnership. (2) If a limited partner takes part in the conduct of the business of an international investment limited partnership, that limited partner shall be liable in the event of insolvency of the scheme for debts of the international investment limited partnership incurred during the period that he so participated in the conduct of the business as though he were for such period a general partner. (3) A limited partner shall be liable by virtue of subsection (2) only in respect of debts or obligations incurred by the international investment limited partnership in favour of a person who at the time the debt or obligation was so incurred reasonably believed, based upon the conduct of the limited partner, that the limited partner was a general partner and whether or not such debts or obligations have since been assigned or otherwise transferred to another person. (4) A limited partner shall not be deemed to take part in the conduct of the business of an international investment limited partnership within the meaning of the Law solely by doing any one or more of the following, irrespective of the frequency of such acts - (a) Being a contractor for, or being an employee or an agent of the international investment limited partnership or being an officer or shareholder of a general partner of the international investment limited partnership which is a body corporate; (b) consulting with and advising a general partner with respect to the business of the international investment limited partnership; 33

34 (c) investigating, reviewing, or being informed as to the accounts or business affairs of the international investment limited partnership or exercising any right conferred by the Law; (d) acting as guarantor or providing any other form of security for the international investment limited partnership either generally or in respect of specific obligations; (e) voting as a limited partner on one or more of the following matters - (i) the dissolution and winding-up of the international investment limited partnership, (ii) the purchase, sale, exchange, lease, mortgage, pledge, or other acquisition or transfer of any asset by or on behalf of the international investment limited partnership, (iii) the incurring or renewal of any indebtedness of the international investment limited partnership, (iv) the change in the objectives or policy of the international investment limited partnership, (v) the admission, removal or withdrawal of a general or limited partner or trustee or the continuation of the business of the international investment limited partnership, (vi) the approval of transactions in which one or more of the general partners have a conflict of interest or potential conflict of interest with one or more of the limited partners. 34

35 (5) Subsection (4) shall not import any implication that the exercise of any other power by a limited partner will necessarily constitute taking part by such limited partner in the business of the international investment limited partnership. Admission of limited partners and assignment of interest. 24.-(1) Notwithstanding anything provided in the partnership agreement, a person may be admitted to an international investment limited partnership as a limited partner with the approval of the general partner, or if more than one general partner, of all of them, whether the assignment is effected under subsection (2) or otherwise without any requirement to obtain the approval of the existing limited partners. (2) Subject to subsection (1) a limited partner may assign absolutely the whole or any part of his partnership interest and an assignee shall as of the date of such assignment become a limited partner with all of the rights and obligations of the assignor relating to the international investment limited partnership, including the obligation of the assignor to make contributions in respect of the partnership interest or the part thereof assigned excluding any liability of the assignor arising pursuant to sections 23 and 25. (3) A limited partner may assign the whole or any part of his partnership interest by way of mortgage or charge provided that no such assignment shall operate to constitute the assignee a partner in the international investment limited partnership or relieve the assignor of any of its partnership obligations, arising from his participation in the said partnership. 35

36 Return of capital contribution. 25.-(1) No person whether during his term as a limited partner of an international investment limited partnership or on ceasing to be a limited partner at anytime thereafter or otherwise on a dissolution of the international investment limited partnership, shall receive out of the capital of the international investment limited partnership a payment representing the return of any part of his contribution to the partnership unless at the time of such payment the general partner, or the general partners in majority, certify that the international investment limited partnership is able to pay its debts in full as they fall due after the proposed return of contribution is made. (2) In the event of insolvency of an international investment limited partnership, a period of four months from the date of receipt by a limited partner of any payment representing the return of a contribution by the limited partner or part thereof in circumstances where the certificate referred to in subsection (1) has not been secured, such payment shall be repayable by the limited partner together with such further sum as may be determined through a direction given in accordance with Section 68, to the extent that such contribution is necessary to discharge a debt or obligation of the international investment limited partnership incurred during the period in which the contribution represented an asset of the international investment limited partnership. (3) In this section receipt shall include the release of the limited partner from any undertaking forming part of a contribution and in this context a liability to make a repayment pursuant to subsection (2) shall be read to refer to due performance of such undertaking. (4) A distribution of any assets of an international investment limited partnership to a limited partner shall be deemed to be a return of contribution for the purposes in subsection (1) to the extent that a distribution to him reduces the value of his share in the international investment limited partnership calculated on the basis of the value of the net assets of the international investment limited partnership. 36

37 Cessation of limited partner on assignment. 26. A limited partner shall cease to be a limited partner of an international investment limited partnership on the absolute assignment of all of his partnership interest or on the return of the whole of his contribution to the international investment limited partnership provided that, notwithstanding any term of the partnership agreement or of any other agreement to the contrary no such assignment shall relieve the assignor of any liability arising under sections 23 or 25. Legal proceedings. 27.-(1) Subject to subsections (2) and (3), legal proceedings in respect of any liability of or to an international investment limited partnership including proceedings to enforce a foreign judgement against or by the international investment limited partnership may be instituted against or by any of the general partners and no limited partner shall be a party to or named in such proceedings. (2) Subsection (1) shall be without prejudice to the right of a general partner or a creditor of an international investment limited partnership or other person to institute or join in proceedings against any one or more of the limited partners who may be liable for the debts of the international investment limited partnership pursuant to sections 23 or 25. (3) A limited partner may with the leave of the Court, bring an action on behalf of an international investment limited partnership if the general partners with authority to bring such proceedings refuse to do so, and the Court determines that this refusal is unjustified or prejudices the interests of the limited partner. International investment limited partnership not dissolved by change in limited partners. 28.-(1) Subject to subsection (2) and subject to any explicit or implied term of the partnership agreement an international investment limited partnership shall not be dissolved by - (a) A change in any one or more of the limited partners or general partners; 37

38 (b) the assignment of the whole or part of the partnership interest of a limited partner; (c) the death, incapacity, bankruptcy, removal, resignation, dissolution or winding-up of a limited partner or a general partner, where there is more than one general partner; (d) any one or more of the limited partners or the general partners granting a mortgage or charge or other form of security interest over the whole or part of their partnership interest; (e) the sale, exchange, lease, mortgage, pledge or other transfer of any assets of the international investment limited partnership. (2) Notwithstanding the provisions of subsection (1) and irrespective of any implicit or implied term of the partnership agreement to the contrary and subject to subsection (3) - (a) The death, incapacity, retirement, bankruptcy, removal, resignation, insolvency, dissolution or winding-up of the sole or last remaining general partner, or (b) the withdrawal of the recognition of the international investment limited partnership, shall cause the dissolution of the international investment limited partnership. 38